Legal Scholarship for Judges
abstract. This Feature examines the role of legal scholarship in judicial decision making. It first provides a historical snapshot of U.S. legal scholarship, noting that the advent of legal realism and other academic schools of thought may have contributed to a gap between legal scholarship and judicial practice. The Feature then conducts an empirical survey of recent citations to legal scholarship on the Seventh Circuit and concludes that most citations were on points of legal doctrine rather than broad legal theory. While legal scholarship could well serve purposes other than influencing judges—such as introducing new ideas, helping to shift norms, and subtly affecting the development of the law—the Feature draws attention to the disconnect between the bulk of legal scholarship and the judicial decision-making process.
author. Chief Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer in Law, The University of Chicago Law School. I appreciate very much the assistance of Brett Rosenthal, University of Texas, J.D. 2013, in compiling the information that appears in the Appendix.
Long before Chief Justice John G. Roberts, Jr. startled the legal academy in 2011 by characterizing legal scholarship as something concerned with “the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria or something,”1 I had worried from time to time about the focus, the utility, and the influence of the outpouring of written work that emanates each year from America’s two hundred plus law schools. Legal scholarship, however, is not a monolith: it is produced by a great variety of writers, it is addressed to a number of distinct audiences, and it reflects a wide range of goals. I do not want to live in a world where there is no place for the scholar who specializes in Immanuel Kant, but at the same time, that scholar must recognize that a busy federal judge or Justice is quite unlikely to read a word she has written. Whether the latter fact is regrettable is one of the points that this Feature covers. Before doing so, however, it takes a broader look at the trends in legal scholarship over the twentieth and early twenty-first centuries. It then takes a more personal turn to address the ways in which I seem to be using legal scholarship. In short, there are some types of articles or books that I systematically push to the back of my desk and eventually discard; others I skim quickly to see if the author is making an interesting point; and a small number I read carefully, either for my own edification or to cite in an opinion.
In order to set the stage, I begin with a brief reminder of the two threads that make up our story: one concerns legal scholarship in the United States, beginning for convenience in the nineteenth century, and the other concerns legal education and the bar. This story shows that, in contrast to the general experience in Europe, we have always had at least two, and maybe three, parallel legal professions in the United States: the legal academy, the practitioners, and the judiciary. From the outside, these may seem to be all of a piece, but for insiders, there are sharp differences among them. Consider, for instance, the fact that one of the worst things a law school hiring committee might say about a candidate for a tenure-track position is that her written work “merely” reviews “what the law is” and is directed to a practitioner audience. By the same token, one withering criticism a young associate might receive from a senior partner about a draft memorandum or brief is that it is “too academic.” There is a rift here, to be sure, and most state and federal judges probably fall on the practitioner side of that rift. That rift may account, in no small part, for the reception that the work of the legal academy receives among judges and practitioners.
After this quick look at the distinctive path legal scholarship has taken, I will jump forward to a look at what the Seventh Circuit has been doing with legal scholarship over the last several years. Others have conducted similar studies,2 and so mine is intended only to add to the body of work that has already been done. There is one caveat, however, that must be acknowledged, even if it is hard to know what to do with it. Scholarship plays both a visible and an invisible role in judicial decision making. The visible role of scholarship is relatively easy to study: how many articles are cited in judicial opinions, and what type of article seems to have the greatest impact? The invisible role of scholarship—the ways in which scholarship introduces new ideas, helps to shift norms, and subtly affects the development of the law—is more difficult if not impossible to evaluate. The warning here relates to the way in which judicial opinions are produced in today’s world (which for convenience we may date from the mid-1960s): who is writing the opinion drafts, who is including the citation to the article, and who actually read the article? If you are thinking that it might not have been the judge, you are correct. Law clerks write a very large number of first drafts, and they are the ones who propose citations to support the result in the opinion. Citations to the Constitution, to statutes, and to regulations are easy for the judge to check; so are citations to judicial opinions. But some citations to articles may appear without much judicial oversight (though this is certainly not inevitable—some judges furnish their own citations, and many, if not most, judges who do not write their own first drafts nonetheless review carefully whatever the law clerk has submitted). I have no proposal that would help scholars to distinguish between “real” citations to scholarship (that is, citations to articles that the judge herself read and found useful for resolving the problem at hand) and “filler” citations to scholarship. Nevertheless, the difference is there, and it means that the data should be treated with some caution.
I. an historical snapshot of u.s. legal scholarship
A. Academic Legal Scholarship
The idea of a body of scholarship devoted to law came slowly to the United States. During the Colonial period, the Revolutionary period, and the early years under initially the Articles of Confederation and later the Constitution, law per sewas not an academic subject. When Thomas Jefferson decided to read law, he studied the leading legal treatise of the time, Sir Edward Coke’s Institutes, a four-volume (and reportedly tedious) treatise, along with Coke’s Reports of leading cases.3 He read these materials, along with Matthew Bacon’s New Abridgement of the Law, under the tutelage of George Wythe,4 and he was then ready to go to work. Such colleges and universities as there were during that period in the United States offered neither undergraduate nor graduate degrees in law. Not until 1793 did William & Mary College grant its first Bachelor of Law degree (an L.B.),5 and not until 1817 did Harvard create the first systematic university-based law program,6 under which the degree of L.L.B. was awarded.7
Academic law as an independent subject was slow to catch on. Indeed, throughout the nineteenth century there was a debate that would sound familiar to modern ears: should universities offer essentially a vocational degree in law, alongside their more elevated subjects such as philosophy, mathematics, religion, and the study of ancient languages, or should universities treat law as part of liberal, philosophic, or scientific studies?8 The prevailing view appears to have been the latter. As of 1900, most states did not require a university education to become a lawyer, and most practitioners had not attended either college or law school.9 It was, however, common for states to require an apprenticeship with a member of the bar as a condition to admission.10 Old practices died slowly: Justice Robert H. Jackson, who sat on the U.S. Supreme Court from July 1941 through August 1954, was the last-appointed Justice never to have graduated from law school.11 Even today, a handful of states permit people who have not completed law school to sit for the bar, although this is quite unusual and not likely to make a comeback.12
Change in legal education, however, was on the way. In 1870, Christopher Columbus Langdell was appointed to be dean of the then-three-person faculty of the Harvard Law School.13 That same year, he inaugurated the case method of teaching, and one is tempted to say that the rest has been history. Langdell, however, was distinctive less for his theories of law than for his pedagogy. Like most professors in the nineteenth century, he believed that there were certain rules of law, and that these rules could and should be learned by students. He merely thought that law, like other “sciences,” was better taught through the use of primary materials than through lectures.
The real radical to come along was Oliver Wendell Holmes, Jr., who published The Common Law in 1881 and launched the movement that later became known as Legal Realism. Holmes famously began his book with the observation that “[t]he life of the law has not been logic: it has been experience.”14 He meant not just that the life of the law was not logic; it also was not science, or God-given natural rules, or reason. This became clear when, in his lecture The Path of the Law, he argued that there is no basis in reason, or science, or other external sources, for deciding what the proper rule of law is for any given situation.15 Try as one might, it is impossible to delete the element of human judgment and reasoning from the articulation of legal rules.
Writing as he did during a time when science was challenging the most fundamental assumptions, Holmes may simply have been to law what other giants were to other fields.16 Charles Darwin had published The Origin of Species in 1859;17 Louis Pasteur disproved the theory of spontaneous generation in 1862;18 in the last decades of the nineteenth century, Thomas Edison revolutionized electric light, sound recordings, and motion pictures;19 Guglielmo Marconi invented wireless telegraphy in the 1890s;20 and at the same time Marie and Pierre Curie discovered and named radioactivity.21 It would have been surprising if law had not in some manner reflected the same creativity, innovativeness, and humanistic spirit.
For law, however, there were institutional consequences implicit in the idea that law is a human creation and that judges in particular have a role in its development. The Framers of the United States Constitution had adopted a government in which basic powers were separated, subject to carefully drawn checks and balances. The simplistic theory has the legislative branch creating the laws, the executive branch enforcing the laws, and the judicial branch applying the laws to cases properly brought before it. But what happens when the legislative branch has consciously delegated authority to promulgate specific rules and regulations under the umbrella of a general statute? What is a judge to do when the law is not clear and some blanks remain? In a world where law was pre-existing and determinate, the judge’s job was to search through the authorities until he found the answer. But if research is inherently incapable of furnishing a definitive answer, to what should a judge turn?
One answer was furnished by the Legal Realists, who took the position that law is not independent of public policy or social interest. To the contrary, they said, law reflects the policy preferences of society as a whole, and of judges in particular.22 Taken to its extreme, Legal Realism postulates that judges do not decide cases based on pre-existing laws, but instead inevitably inject their own policy views into each matter before them.23 If the Legal Realists were accurately describing the judicial process, then their school calls into question the assumption of the Framers that it is possible to separate the legislative and judicial functions. It also throws a shadow over the idea, famously articulated by Chief Justice John Marshall, that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”24 Why should unelected judges with tenure of office “during good behavior” have this power, if they are not tethered to law, understood as a set of rules that democratic institutions have specified in advance? The Realists had no good answer to this question. That is probably because it is not a very good question. By assuming away all of the complexity of both the lawmaking and the law-application process, the Realists had created a world in which the rule of law itself was impossible—a world where judges could and would exercise arbitrary power.
Predictably, other schools of thought came along, some of which challenged the Realists and others of which pushed their thinking further. Among the former is the Legal Process School of the 1950s and 1960s, which tried to find a middle ground between the legal formalism of the pre-Holmes period and the nihilism of Legal Realism. Its adherents included scholars such as Herbert Wechsler, Henry Hart, Albert Sacks, Lon Fuller, John Hart Ely, and Alexander Bickel, all of whom emphasized the constraints on courts imposed by the institutional structure within which they operate.25 The rule of law could be respected in such a setting, despite the rejection of the notion of “ultimate” truth in natural law, because the governed have notice of the rules under which they must live, an opportunity to contest them in a fair hearing, and meaningful remedies.26 Finally, both legal process advocates and later scholars, including Ronald Dworkin, worked to articulate a way in which law would operate neutrally for and against all persons.27
Legal pragmatism is another approach that attempts to connect law with the real world in a way that constrains judicial choice while at the same time acknowledging the inevitability of case-by-case judgment. Its most prominent proponent is Judge Richard A. Posner, a judge of the Court of Appeals for the Seventh Circuit and a leading public intellectual.28 Judge Posner’s version of legal pragmatism grows out of his lifelong study of law and economics, but it ranges more broadly than many might think. Law and Society is another post-Realist philosophy that seeks to find room for legitimate judicial action notwithstanding the lack of clear answers in positive law.29
On the other side of the coin, Legal Realism spawned the family of Critical Studies schools, including Critical Legal Studies, Critical Race Theory, Critical Gender Theory, and others. It would be impossible to describe each of these approaches fully, but in brief they reject the idea that legal doctrine has any content independent of the social realities against which it operates (including, for example, liberal theory, racial realities, and gendered expectations).30 Unless one is willing, in a leap of faith, to delegate decision-making power to random persons with the title “judge,” it is hard to see where the judiciary fits into these schools of thought or what a judge persuaded by something in the literature is to do. This may be one reason why references to these bodies of literature are vanishingly scarce in judicial opinions.
Scholarship about the way judges think and what influences their decisions has, until recently, developed without much input from the judges themselves. Perhaps this is why some of the theories advanced—Realism, Critical Studies—seem incompatible with principled judicial decision making, if principled judicial decision making requires adherence to democratically legitimate substantive laws. This left judges who wanted or needed to consult materials beyond earlier cases and statutory or constitutional texts with a dearth of available sources. As the next Part shows, other (primarily non-academic) organizations began to fill that vacuum.
B. Another Kind of Legal Scholarship
At the same time as the legal academy was wrestling with these various schools of thought, another source of legal scholarship was developing. It is epitomized by the American Law Institute (ALI), “founded in 1923 following a study conducted by a group of prominent American judges, lawyers, and teachers known as the ‘Committee on the Establishment of a Permanent Organization for the Improvement of the Law.’”31 Among the ALI’s founding members were Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root; Judges Benjamin Cardozo and Learned Hand were among its early leaders.32 The ALI’s stated goal was to “address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was.”33 And indeed that is what the ALI has done through its now ninety-two-year history. Note the contrast between the notion that it is possible to state “what the law is” and the intellectual movements that were taking place during the 1920s and 1930s. The membership of the ALI draws from all three branches of the legal profession: bench, bar, and academy, but its Restatements of the Law and Principles of the Law are primarily addressed to courts. There is now a considerable body of work published under the ALI’s auspices, but it is a different sort of legal scholarship than the articles and books that are typically written by legal academics. The U.S. Supreme Court justices, their state court counterparts, and practicing lawyers alike look to the Restatements for guidance when a new legal problem comes up, and the Restatements are cited regularly in judicial opinions.34
Another source of legal commentary comes from the many bar associations and providers of continuing legal education around the country. Some sponsor regular journals, such as the American Bar Association Section of Litigation’s journal Litigation, or the Section of Antitrust Law’s Antitrust Law Journal, while others publish whenever they sponsor a program. These publications can be very useful to busy lawyers, but they are not generally recognized in the legal academy as “real” legal scholarship, and they are not what I am discussing in this Feature.
One might ask, as Chief Justice Roberts did, whether the output from the academy has become so removed from the legal issues our society faces that it has lost its particular relevance to the legal profession. (I say “particular” relevance in recognition of the fact that good philosophy, or social science, or literature has general relevance and importance. Even so, such general works do not aspire to—and normally do not—suggest a good way to navigate the complexities of, for example, the Clean Air Act, the Cruel and Unusual Punishment Clause of the Eighth Amendment, or complex bankruptcy preferences.) There are reasons to encourage law schools and legal scholars to return to the fold and to realize that law itself is eminently worthy of serious study. Good work does not need to be of the “Law and” variety, in the words of the late professor Arthur Leff,35 nor is it the case that people are not qualified to join the legal academy unless they have not only a law degree but also a Ph.D. in another area.36 The ALI has launched a project to encourage serious legal research through its Young Scholars Medal.37 Law schools would do well to find more ways to encourage both theoretical and empirical work in law—work that would then be published in mainstream law journals and stand some chance of helping all participants in the system understand better what is on the books, what consequences (intended or unintended) the law in question has had, and what improvements might be made.
C. Legal Scholarship Today
Before turning to a look at the legal scholarship that is presently making its way into Seventh Circuit opinions, I will close this part of the Feature with a few general questions and some general answers. The questions are these:
· Who is writing?
· Who is publishing?
· Who is the intended audience?
· How do written works reach that audience?
Here are my answers:
· Everyone is writing—lawyers, legal academics, other academics, journalists, and bloggers.
· Everyone is publishing—from the student-edited law reviews,38 to the (small number of) peer-reviewed journals, to bar association outlets, to the blog established just yesterday.
· From one perspective, there are no restrictions on the intended audience. Nevertheless, as a practical matter there is a hierarchy: first, the peers of the writer (scholars write for other scholars, practitioners write for other practitioners, and journalists write for the public); second, decision-makers; and third, the legal profession writ large.
· Written works now reach audiences largely through computerized databases on the Internet. This has had the effect of diluting the influence of the major law reviews, which used to have a shelf-space advantage in law libraries. For the small number of peer-reviewed journals, readers have some assurance of quality. Otherwise readers are on their own, either with a student-edited journal or something more entrepreneurial.
II. scholarship in action
This overview shows who is writing and who the authors hope are reading their output. As I indicated at the outset, however, more often than not those hopes are not realized. In order to test that hypothesis, I took a look at the “published” (meaning precedential) output of the Seventh Circuit from August 2013 to August 2014. I recognize that this approach may miss certain ways in which scholarship affects judges. For instance, judges might be reading articles that they do not cite (just as they may spot interesting articles in the newspaper or on their favorite blog). My hypothesis, however, is that the most influential academic works will show up in opinions. In any event, tracking the invisible ways in which scholarship affects outcomes without a good empirical survey of the judges is quite difficult. In days gone by, one might have looked at each judge’s chambers library to see which law journals the judge regularly reviewed. Today, largely for budgetary reasons, printed copies of law reviews have vanished from chambers’ libraries and the judges rely exclusively on electronic databases. In addition, heavy dockets at both the state and federal level leave little time for “personal-improvement” reading. This can be unfortunate, when something of real interest comes along and the judge must settle for skimming it. But that is reality. With those thoughts in mind, I turn now to the results of my survey.
According to Westlaw, the Seventh Circuit issued 1,123 opinions between August 1, 2013 (the earliest date on my list) and August 14, 2014 (the latest date I have); of those, 669 were “reported” or “published,” and 454 were “unreported” or nonprecedential.39 Over that period, only seventy-six reported cases, or 11.4%, included one or more references to legal scholarship. (It is unlikely that the percentage would do anything but go down if we searched the unreported decisions for citations to scholarship.) The case with the greatest number of references to scholarly articles was Korte v. Sebelius, which dealt with such contentious questions as whether corporations have standing to attack the contraception mandate in the Affordable Care Act, whether the mandate imposed a substantial burden on religious exercise, and whether the government’s showing was sufficient to demonstrate the validity of the mandate.40 Perhaps, one might think, scholarship is especially useful when cutting-edge, politically divisive issues are presented in the case. More broadly, it is helpful to break down the types of scholarship that appear in opinions.
Our own review of the articles cited in the opinions suggested seven different types of legal scholarship that appeared. I present them here in order of frequency: (1) doctrinal works that focus on a narrow issue (forty-two cases, with eighty citations); (2) doctrinal works that survey an area (twenty-four cases, with forty-two citations); (3) theoretical or interdisciplinary works (eighteen cases, with twenty-six citations); (4) articles discussing legislative history or those that include a critique of the law or a proposal for change (seven cases, with nine citations); (5) articles presenting empirical research (six cases, six citations); (6) articles discussing recent decisions of the U.S. Supreme Court (five cases, six citations); and (7) articles offering a comparative legal perspective (three cases, four citations). These numbers are telling: judges (or their law clerks) refer to articles that are most pertinent to the problem at hand. More ambitious pieces—the theoretical, the empirical, or the comparative—are used with greater caution.
That is not because theory, data from the world, and perspective on how others do things are irrelevant to the law. But, particularly for first-instance and intermediate-level courts, such materials must be used with caution, within the boundaries that the Constitution, legislation, and higher courts have delineated. Law does matter, and it imposes constraints that genuinely bind judges. No matter how well-reasoned a theoretical piece may be, or how compelling the empirical evidence, or how wise another country’s solution may appear, it is the task of U.S. judges to apply and interpret U.S. law. A judge might comment on a rule whose time has come and gone, but the lower court judge must nonetheless apply it.41 In some instances, however, the law invites judges to consult empirical evidence. How, for instance, is a judge to decide whether an advertising campaign or a debt-collection letter is misleading? Empirical evidence might not be necessary, but surely it is relevant to this type of question. Many U.S. laws also advert to foreign law: obvious examples include the foreign tax credit,42 but the reach of foreign law is also central to the adjudication of a motion to dismiss on forum non conveniensgrounds,43 or a motion to stay proceedings in favor of a first-filed foreign proceeding that covers the same ground, or a suit to obtain information for use in a foreign legal tribunal.44
The overwhelming majority of the citations, however, are more immediately utilitarian. Looking now at citations rather than opinions that include a reference to scholarship, we see that there were 173 citations over the course of the year in question, and that 122 of those (approximately 70%) were either “doctrinal/survey” references or “doctrinal/narrow issue” references. Considering the volume of legal scholarship that pours out of America’s more than 200 law schools each year, most of which have several student-edited journals, this is a poor showing. Not only does this informal survey suggest that the results of legal scholarship seldom appear in judicial opinions, it also suggests that the articles that are cited are those that fall at the lower end of the prestige scale that is tacitly accepted in elite law schools. Judges may be reading the more ambitious articles in their spare time, scarce though that often is, but they are turning for help in deciding cases to the doctrinal work that emerges from the legal academy and that groups like the ALI and the bar produce, as our review of citations revealed.
The final insight that comes from this snapshot of the Seventh Circuit may allow this Feature to end on a more optimistic note. Judges vary greatly in their willingness to include references to scholarship in their opinions. Looking at the cases gathered in the Appendix and counting both majority opinions and separate opinions, we see that Judge Posner referred to scholarly articles in thirty-one different proceedings—by far the most of any judge on the court. Judge Hamilton came in second, with references in ten opinions. I was third, with nine; Judges Flaum, Easterbrook, Rovner, and Sykes each had five; Judges Manion and Tinder had four, and Judge Kanne one. These numbers suggest that even when a panel of three (or more) judges agrees on a particular result, the reasons for each judge’s decision will vary, and the types of materials that individual judges discuss in their opinions are not uniform.
It would be a mistake, however, to make too much of a single year’s docket. Many cases decided by the federal courts of appeals involve straightforward applications of the law, and there is no need to belabor the analysis with gratuitous citations. If in a given year a particular judge does not happen to be assigned to a panel with the kind of blockbuster case that invites references to legal scholarship, then the judge will have no occasion to consult the law reviews, or, for that matter, the ratification debates that led to the adoption of the Constitution, or an eighteenth century dictionary.
For purposes of this discussion, as well as more generally, it is also vital to bear in mind the distinct roles of trial court judges, intermediate appellate judges, and judges or justices on courts of last resort.45 The role of legal scholarship and its potential utility are greater for courts of last resort, whether state supreme courts or the United States Supreme Court.46 It is no accident that many state supreme courts have looked to the ALI’s Restatements of the Law when they consider new questions of contract, tort, agency, property, or the like. (They are not as likely to adopt some of the more abstract musings of legal scholars, but that can hardly surprise the writers.) At its best, legal scholarship rises above the details of any particular field of law and improves understanding of our legal system as a whole. It can reveal similarities that have been hidden by the details of old doctrines or cases; it can sweep away irrelevancies and provide a clear rule of decision that benefits the community as a whole and the lower court judges who must apply the law; it can reveal unintended inefficiencies or impositions that are inconsistent with fundamental constitutional principles. Perhaps these advances inspire legislators to pass better laws; perhaps they inspire Supreme Court Justices to look through old myths, like “separate but equal,” and realize that there is just one principle of equality; and perhaps they allow other judges to explain their reasoning in a way that is clear, consistent with binding rules, and compelling. Those are some of the goals to which legal scholarship should aspire.
To the extent that legal scholarship can spark a new way of thinking about law, and by fanning the flame become influential, it is worthwhile. But most of those sparks, unfortunately, do not fall on judges. Professors in the legal academy write for their peers; they test hypotheses in workshops, work-in-progress luncheons, exchange of papers for comment, and their experiences as teachers in the classroom. Papers are commonly posted online before they take their final form as articles. The content of those papers reaches some judges directly, at least some of the time, but more often the influence is indirect—the invisible role of scholarship that I discussed at the outset of this Feature. The judge may remember one or more particularly influential professors from her own law school experience and find those professors’ approach to the law persuasive. Or the judge, recalling days as a practicing lawyer, may understand the need for imaginative thinking when a client’s problem seems like a square peg being hammered into a round hole, yet the lawyer (and later the judge) is persuaded that the client should prevail. When legal scholarship subtly influences the way that a brief is written, and the writer has taken care to respect the judge’s institutional constraints, that scholarship may be very influential indeed. Judges are also exposed on a daily basis to whatever scholarship contributed to the education of their law clerks. Finally, if other judges are like me, they receive a constant flow of article offprints and books from academics around the country who are only too pleased to share their latest work product. I do not read every word of every article or book that I receive, but I do take a look at all of them to see what is being discussed, how well the piece is written, and whether it pertains either generally to what I do as an appellate judge or particularly to an area that interests me.
Legal scholarship would go out of business if it were produced exclusively for judges, but fortunately for those in the scholarship business, the audience is not so limited. Even though a great deal of what is produced is too abstract to be useful (although I have a quibble with the Chief Justice’s criticism, since Bulgaria did not exist as an independent state between the fourteenth and late nineteenth centuries),47 one can never predict where basic research will go, in law just as in the hard sciences. Judges are the indirect beneficiaries of that basic thinking, and they are the direct beneficiaries of legal writing that is more focused on either substantive doctrine or legal process. So write on, and we will read what we can.
For the Appendix, please see the PDF.